When the Social Services Commission is asked to expand who qualifies as a 'special needs child' for adoption assistance, can it adopt a temporary rule, and what budget approval will the change require?
Plain-English summary
Someone, likely an adoption advocacy organization or an adoptive parent, petitioned the Social Services Commission to expand the rules defining who qualifies as a special needs child for purposes of adoption assistance benefits. Adoption assistance is a state-administered program that helps reduce the financial burdens of adopting children with special needs, paying monthly cash payments to adoptive parents and vendor payments to providers of medical and therapeutic services.
The AG (signed by Michael F. Easley, with Ann Reed and Robert J. Blum as the working attorneys) gave a procedural roadmap for how the petition would have to move through the Commission.
Temporary rule criteria. N.C.G.S. § 150B-21.1(a) limits when an agency can adopt a temporary rule (one that takes effect immediately, before completing the full notice-and-comment cycle). The six grounds are:
- A serious and unforeseen threat to the public health, safety, or welfare.
- The effective date of a recent act of the General Assembly or the United States Congress.
- A recent change in federal or State budgetary policy.
- A federal regulation.
- A court order.
- The need for the rule to become effective the same date as the State Medical Facilities Plan approved by the Governor (only for rules addressing matters in the Plan).
A petition to expand adoption assistance eligibility, on its own, would not normally meet these criteria. The petitioner would need to identify a specific federal-rule change, court order, or legislative act that triggered the need for immediate action. The AG did not say the criteria could not be met, only that they had to be carefully evaluated.
Permanent rule connection. All temporary rules must lead to permanent rule changes. A temporary rule cannot be a permanent workaround. If the Commission adopts a temporary rule expanding eligibility, it must follow up with a permanent rule through the standard notice, comment, and Rules Review Commission process.
Fiscal note and budget certification. N.C.G.S. § 150B-21.4(a) requires a fiscal note for any permanent rule that would require expenditure or distribution of funds subject to the Executive Budget Act. The expansion of adoption assistance eligibility would obviously trigger this requirement, because more children would qualify, more payments would flow.
Before the Commission can publish the proposed rule text in the North Carolina Register, it must:
- Prepare a fiscal note stating the amount of funds the rule change would expend or distribute, and explaining how the amount was computed.
- Submit the fiscal note to the Director of the Budget.
- Obtain certification from the Director that funds are available.
The Director must certify if funds are available; the Director must decline if they are not. The AG calls the Director's certification "speculative" for this petition because the AG did not know whether the necessary funds would be available.
Bottom line. Even if the Commission approves the petition substantively, the procedural path is long. Temporary rule criteria, then permanent rule notice, then fiscal note, then budget certification, then notice-and-comment, then Rules Review Commission. The petitioner should expect "some time" before the desired result is achieved.
Currency note
This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The rulemaking statutes in Chapter 150B have been amended on multiple occasions since 1996. The Executive Budget Act has been substantially restructured. The Rules Review Commission process has its own procedural updates. The adoption assistance program itself has changed (in part driven by federal Title IV-E adoption assistance amendments). Anyone currently navigating a rulemaking petition on this or any similar subject should consult the current Chapter 150B, current budget statutes, and current agency procedures.
Background and statutory framework
North Carolina's adoption assistance program parallels the federal Title IV-E adoption assistance program. Eligibility rules are set by both federal law (for Title IV-E reimbursable benefits) and state law. The state has discretion to extend assistance beyond federal minimums using state-only funds. Defining "special needs" is a key threshold question because it determines who can receive subsidies that help recruit adoptive families for hard-to-place children.
The temporary rule framework in N.C.G.S. § 150B-21.1 reflects a structural concern with regulatory due process. The general rule is that agencies must follow notice-and-comment procedures before adopting binding rules. Temporary rules bypass those procedures in narrow circumstances. The six criteria are deliberately specific to prevent abuse. An agency cannot simply assert "this is urgent" and skip the regular process; the urgency must fit one of the enumerated categories.
The fiscal-note requirement is one of the General Assembly's most important budget controls. Agencies cannot quietly expand spending through rulemaking. The fiscal note is the agency's estimate of how much money the rule will cost or distribute. The Director of the Budget's certification is the gatekeeper: if funds are not available, the rule cannot be published as a permanent rule. The fiscal control aspect of the certification can be a significant constraint, particularly for benefit programs where adding eligibility categories scales costs.
The opinion's careful structure (procedure, not merits) is appropriate. The AG is not deciding whether the Commission should expand the eligibility rules. That is a substantive policy question for the Commission and the legislature. The AG is only mapping the procedural steps required if the Commission elects to act.
Common questions
What is a "special needs child" for adoption assistance purposes?
The opinion does not define the term in detail. The substantive definition was in the Commission's rules at the time and in the Family Services Manual. Common elements in special-needs definitions include older age, racial or ethnic minority status, sibling group placement, physical or developmental disability, and emotional or behavioral conditions that make recruitment of an adoptive family more difficult.
Can the petitioner appeal if the Commission denies the petition?
Yes. The general administrative procedure act provides for judicial review of agency denials of rulemaking petitions, though the standard of review is highly deferential. Courts rarely overturn an agency's choice not to adopt a rule. Practical strategies are usually to refile with additional supporting data, lobby for legislative action, or both.
Could the petitioner pursue the same goal through the legislature instead?
Yes, and often that is faster than the rulemaking path. A bill expanding adoption assistance eligibility could be introduced and, if passed, would itself satisfy the second statutory criterion for a temporary rule (acts of the General Assembly), and would also obviate the fiscal-note problem because legislative appropriations would accompany the statutory change.
Why is the budget director's certification "speculative" for this petition?
Because the AG does not know in advance whether the Director of the Budget will determine that funds are available. The Director must look at the actual fiscal note amount and compare it against current revenues, appropriations, and reserves. If funds are unavailable, the Director must decline to certify, and the rule cannot proceed as a permanent rule. The AG cannot predict the outcome of that fiscal analysis.
Source
Citations
- N.C.G.S. § 150B-21.1(a)
- N.C.G.S. § 150B-21.4(a)
- Executive Budget Act, Article 1 of Chapter 143
- 10 N.C.A.C. 25.0101
Original opinion text
[Note: The published version of this opinion as recovered from the NCDOJ archive begins mid-text. The reproduction below preserves the original AG's prose verbatim from where the recovered text begins.]
- (1) A serious and unforeseen threat to the public health, safety, or welfare.
- (2) The effective date of a recent act of the General Assembly or the United States Congress.
- (3) A recent change in federal or State budgetary policy.
- (4) A federal regulation.
- (5) A court order.
- (6) The need for the rule to become effective the same date as the State Medical Facilities Plan approved by the Governor, if the rule addresses a matter included in the State Medical Facilities Plan.
G.S. § 150B-21.1(a). Please note further that all temporary rules are required to lead to permanent rule changes. For your convenience a copy of 10 N.C.A.C. 25.0101, which sets forth the requirements for submitting a petition, is attached.
Should the Commission grant your petition, it appears obvious that an expansion of eligibility for adopted special need children will result in a fiscal impact, which will trigger G.S. § 150B-21.4(a). It states:
(a) State Funds – Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would require the expenditure or distribution of funds subject to the Executive Budget Act, Article 1 of Chapter 143, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Director of the Budget and obtain certification from the Director that the funds that would be required by the proposed rule change are available. The fiscal note must state the amount of funds that would be expended or distributed as a result of the proposed rule change and explain how the amount was computed. The Director of the Budget must certify a proposed rule change if funds are available to cover the expenditure or distribution required by the proposed rule change.
Whether or not the Director of the Budget could certify a rule changing the eligibility requirements for assistance to adopted special need children is speculative.
In any event, even if Social Services Commission does approve your petition, it may be some time before it can achieve the desired result.
MICHAEL F. EASLEY
Attorney General
Ann Reed
Senior Deputy Attorney General
Robert J. Blum
Special Deputy Attorney General